by: George P. Fletcher on February 9th, 2016 | Comments Off

Genesis 1:5
AND GOD CALLED THE LIGHT DAY, AND THE DARKNESS, NIGHT. EVENING AND THE MORNING: ONE DAY.

Source: Flickr (John Dill)

Reading this passage, we can incline toward pessimism or optimism. The down side is that the text literally says one day, not the first day. This one day could have been all there was – the source of the Mel Brook’s famous line – “That’s all there is, folks.” This one day — – first without light, then with light – could have been the creation. Are there hints in the text that there will be more? Yes, the very act of naming carries an optimistic message that there will eventually come a being who understands the names given. Only human beings understand not only their own names but thousands of others.

One day, then, but how long is this day? All units of time – except those that have specific astronomic references – are notoriously indeterminate. The week – a foundational concept in Jewish, Christian, and Islamic life – is our invention. Its value is that it generates the idea of the sabbath in all three Abrahamic faiths. Indeed we might say that the purpose of the creation story is to introduce the notions of work and rest into human culture. Without the notion of a limited day, however, we could never progress beyond creation to a time of rest.

Underlying this rhythm of the week is a deeper philosophical distinction between actions and omissions. We are responsible for the consequences but not necessarily those of our omissions. One of my favorite Talmudic stories explaining this point is the tale of the two travelers with the canteen in the desert. If there is enough water for one, does the possessor have to share with the other one who will otherwise die. The answer is no. This is poignant as compared to the treatment of killing one to save another in the same pages of Sanhedrin. That is not permitted: Is your blood redder than his?

In other words you retain the canteen you have but you may not take the canteen of the other. This captures the contemporary distinction between omissions – failing to rescue – and actions – depriving another of life. The distinction between letting harm and causing harm is fundamental to our moral loves. The same distinction between actions and omissions provided the proper perspective on the creation story. We assume that God is acting affirmatively and this is expressed in actions bestowing the names night and day.

But what does it mean to call the light day and its absence, night? The practice of naming is associated with designating specific objects or persons with proper nouns. Saul Kripke, one of the leading contemporary philosophers, made the contribution of his career by analyzing proper nouns in Naming and Necessity (1980). Proper nouns retain a fixed designation in all possible variations of reality. It is possible that this passage should be read as affixing a proper noun to the night and the day, but that would imply the pessimistic view that it was the only night and day there would ever be.

The optimistic view views God as naming a common noun – days like tables and chairs. But this mode of naming requires an entire conceptual universe in which the mass of things we see are divided and packaged in distinct entities. Different languages could carve up the world different ways. For example – and this will become an issue for us very soon – we could live in world without gender distinctions in our language. It is not inherent in the idea of language that we distinguish between men and women or there could be a third grammatical gender, as in German and Russian.

God’s act of naming night and day does not necessarily imply the gender of the two. Night is often feminine but not in Hebrew (Lila tov – Lila is masculine). In language gender is arbitrary, for the great expanse of common nouns that refer to the objects and ideas of daily existence. Significantly, proper nouns do not have gender. These are some exceptions that incorporate words like ‘state’ and ‘republic.’ Then they follow the gender of the incorporated common noun, e.g. Die Bundesrepublik. The problem of gender and proper nouns will concern us soon enough when we consider the word designating ‘Adam’ as a proper noun or a common noun.

The assumption is that ‘night and day’ are not proper nouns, not names. They are common nouns. They are recurrent phenomena, and every time the dawn breaks, the light will be called day. This is an extraordinary leap of linguistic ability.

The ability to abstract to the level of common nouns and adjectives requires mental development. I recall the day when my daughter Deborah was learning to talk and suddenly saw a bright red car drive by. She blurted out ‘red.’ She could abstract the color from the object and see the commonalty of the car and one of her toys. I was stunned by the sheer genius that every child innately brings to the world. This capacity for abstraction explains how it is possible to confer common nouns ‘night and day’ on the recurring darkness and light.

Implicit as well in this act of naming is the capacity to express distinctions. The biblical scheme is dichotomous – dark or light, night or day. This way of thinking is critical for the development of language and it both a virtue and a vice of biblical thinking. The virtue is that we establish ourselves in polar opposites. After understanding north and south, we begin to recognize the innumerable points between. It is the same with night and day. The opposites lead eventually to transitional categories with the artistic appeal expressed in the ‘dawn’ of civilization or the ‘twilight’ of the gods.

Dichotomous thinking – night and day– is the way of lawyers. Indeed analyzing the biblical text provides insights into the mysterious ways of the law. Lawful vs. unlawful, contract or no contract, tort or no tort – that is what legal argument is about. A major breakthrough occurred in administrative law – a notion that occupied a middle space between executive and judicial power. Administrative law required a new category of thought – discretion. In modern Hebrew the idea is expressed as ‘shikul daat.’ The idea is that administrators of the government do not choose between alternatives. They investigated how they can further a goal of city planning or police enforcement without entrenching on individual rights. Thus neither biblical interpretation nor the law can prosper without both dichotomous thinking and the wisdom to recognize that there is room for middle categories.

Our conceptual world – like the story of creation – is constantly unfolding.

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George P. Fletcher is the Cardozo Professor of Jurisprudence at Columbia University School of Law.